Constitutional Law Outline – Prof. Chesney – Spring 2010
I. Introduction
A. Framing Constitutional Questions
1. Is the dispute a matter over which the governmental institution has the power to act?
2. Is the dispute a matter of whether the action in question is permissible for any institution?
3. A constitutional question can be framed under question 1, 2, or both.
B. Who decides questions of Constitutional law?
1. Most believe the judiciary
2. This is a limited viewpoint because it overlooks the extent to which other government bodies interpret the Constitution.
3. Many questions never even reach the courts. Even those that do can be highly influenced by other areas of political and social life.
C. Two questions to as when using any method of Constitutional argument:
1. Does the method actually yield a relatively determinate answer to the particular question at issue? (There more than likely will not be a definitive, objective yes or no answer in matters of Constitutional debate.)
2. If so, how much weight should a decision-maker give to that answer? (This varies depending on who the decision-maker is: SCOTUS, the president, the public, etc.)
II. Types of Constitutional Argument
A. Originalism – determining what the Constitution means by looking back to some point in time
1. Types
a. Drafters’ Intent – determining the meaning by what the original drafters of the document intended the Constitution to mean
b. Ratifiers’ Intent – determining the meaning by what the people who approved the document intended the Constitution to mean
c. Original Public Meaning Irrespective of Intent – interpreting the Constitution by looking at what the popular understanding of the words would have been at that time.
i. This is the popular form of modern Originalism. It’s similar to Ratifiers’ Intent if we assume that the people who ratifies the Constitution used words in their ordinary public meanings.
2. Pros
a. We need a reference point for anchoring a static meaning to the document so it does not change over time.
b. The drafters were especially wise in some way.
c. Analogy to contract interpretation (when in doubt, ask the original parties to the document).
d. One of the most authoritative sources regarding the meaning of the Constitution
3. Cons
a. Over-prioritizing drafters’ intent can under-prioritize the people, and by extension the democratic legitimacy of the inquiry. Ratifiers’ intent is more democratic, but does not solve this problem.
b. Can there ever be one “collective intent” when you are dealing with a multi-member body? This problem is exacerbated the larger the body is.
c. Where exactly do we look to find this intent?
d. Whose intent should we prioritize?
e. Raises issues of dead hand control.
B. Textualism – determining what the Constitution means by looking at the plain text of the document
1. Types
a. Plain Text – determining meaning by looking only to the plain text of the Constitution
b. Intratextualism – determining meaning by looking to different parts of the document and using them to interpret another part
c. Contextualism – determining meaning by examining where a certain provision is found within the document
2. Pros
a. Seems to be a relatively authoritative source.
b. Analogy to statute interpretation (generally courts start with the plain language of a statute when interpreting).
3. Cons
a. Word meanings change over time.
b. Raises issues of dead hand control.
C. Structuralism – determining what the Constitution means by looking to the structure provided by the document. This is a very common type of argument.
1. Types
a. Vertical Distribution of Powers – a certain right is reserved for the states/the federal government
b. Horizontal Distribution of Powers – a certain right is reserved for a certain branch of the federal government
2. Pros
a. If an enumerated right or power, its hard to argue with.
3. Cons
b. If right or power is not specifically enumerated, this method is less helpful.
c. Can’t answer hard questions…no explicit textual support
D. Precedent – determining what the Constitution means by turning to prior decisions. Common strong argument
1. Types
a. Judicial Precedent – determining meaning by looking to prior judicial decisions
b. Practical Precedent – determining meaning by looking to custom or practice
2. Pros
a. Reliance on one static meaning and stability for the future.
b. Judges are generally seen as the most competent branch for constitutional interpretation.
c. Institutional legitimacy if the precedent is followed
3. Cons
a. Raises issues of dead hand control (less flexible, cant adjust to change in times).
b. Generally, “it’s always been done this way” is not a persuasive argument. Tradition does not make something constitutional.
c. Judicial interpretations change and when they overturn precedent then it reduces judicial legitimacy.
d. While lower courts are bound to judicial precedent, that does not mean it will be persuasive to the broader public.
E. Consequentialism – interpreting the Constitution according to the best policy outcomes
1. Pros
a. If you decide without looking at the consequences, it’s like making decisions in a vacuum.
2. Cons
a. Frequently seen as imposing policy preferences dressed as best policy outcomes.
i. Attitudinal model/External Accounts – the proposition that all the arguments judges offer are window dressing. Judges use consequentialist reasoning, but don’t talk about it and dress their opinions in other types of arguments. This is a deeply contested model.
b. We are not psychics. We may think a decision will have one effect, but we may be wrong.
c. Generally you will have disagreement about what the best policy outcome is.
d. Can lower judicial legitimacy of the court
III. Comparative Institutional Legitimacy/Competency; the Counter-majoritarian Difficulty; Formalism
A. Comparative Institutional Competency: Which institution is most likely to get the answer right?
B. Comparative Institutional Legitimacy: Which institution is most qualified to make this decision?
C. The Counter-majoritarian Difficulty
1. Alexander Bickel coined the term counter-majoritarian difficulty. He used the term to describe the argument that judicial review is illegitimate because it allows unelected judges to overrule the lawmaking of elected representatives, thus undermining the will of the majority. The problem stems from the understanding that a democracy’s legitimacy arises from the fact that it implements the will of the majority.
2. Criticisms of the Counter-majoritarian Difficulty
a. Perhaps the constitution does not actually value majoritarianism. Exs: Each state has the same number of votes in the Senate, Filibuster, Presidential Veto, Treaty clause, and process for amending the constitution.
b. Perhaps judicial review is consistent with majoritarianism after all. The judiciary guards the constitution; the constitution is the will of the people; therefore the judiciary guards the will of the people.
c. Perhaps judicial review advances competing constitutional values such that we should be willing to live with this countermajoritarian aspect.
D. Formalism and Categorization
1. Examples:
a. Law-making or non-law-making (non-delegation doctrine)
b. Principle or inferior officer
c. Economic or non-economic
2. Once a judge places an activity into one of these formal categories, it becomes clear what rule should apply
3. These categorizations are ambiguous and making them entails a lot of judicial discretion
4. Legal Realists argue that judges make these decisions with their policy preferences
5. Formalism is these types of opinions obscures the amount of discretion judges have in these types of situations
6. Its how the court addresses counter-majoritarianism issue.
IV. The Bank Controversy – The First Major Constitutional Debate
A. This is a vertical distribution of powers question: Can the federal government charter banks the way states do? Does Congress have the power to do this?
B. Madison’s view – Madison (at the time a representative from VA) denounced the bank as beyond Congress’ constitutionally delegated authority. He argued that the constitution did not grant general powers, but rather only particular powers, reserving the other powers to the states.
1. Madison’s Methods of Argument
a. Drafters’ Intent Originalism – I was at the drafting of the Constitution. We talked about including charters of incorporation and rejected the idea. Charters are therefore unconstitutional.
b. Plain Text – Article 1, § 8 does not list this as a power held by Congress.
c. Structural – Madison argues that Congress has limited power and the only debate should be whether a particular power is among these powers. In Madison’s view, only three clauses in the constitution could possibly justify Congress establishing a bank:
i. The power to lay and collect taxes – Madison argued that the bank has nothing to do with this
ii. The power to borrow money – Same
iii. The power to pass all laws necessary and proper – strict v. narrow reading which a plain text argument cannot resolve. Madison argued that an overly broad reading would give Congress unlimited power.
d. Intratextualism – Madison makes analogies using other enumerated powers in Article 1, § 8
e. Ratifiers’ Intent – This bill is contrary to the spirit in which the Constitution was adopted.
2. Madison’s Rules of Interpretation:
a. Don’t interpret in a way that is contrary to the structure of the established system
b. If meaning is clear, stick to it
c. If meaning is unclear, pick the meaning that has the better outcome. (Consequentialist)
d. Madison does not give a hierarchy of how these methods should be applied.
C. The Attorney General’s Opinion (Edmund Randolph) – Randolph saw this bill as a power grab. He noted that some proponents of the bill relied on the preamble, which he though misguided because the preamble was intended only as a declaration of the views of the convention, not as operative law. “It may without exaggeration be affirmed that a similar construction on every specified federal power will stretch the
w will always trump state law under the supremacy clause and gives the federal government the power to preempt state law through federal legislation.
c. Nature of Constitutions – constitutions are broad, organic documents that legislatures fill out and interpret. It is contrary to the nature of the document to expect each and every power to be explicitly laid out.
d. Originalism (evidenced by textual change) – The A of C said that if certain powers were not included, they were not possessed, but this language was not included in the constitution. There is similar language that omits the prohibition, from which we can infer that the drafters intended implied powers.
e. Intratextualism – Why would we need Article I, § 9 if Congress only had those powers explicitly laid out in Article 1, § 8?
f. Consequentialism – Hamilton’s argument that Congress would never get anything done if we required a strict necessity test for the necessary and proper clause. Further, the clause prevents Congress’ power from being limitless.
i. The necessary and proper clause requires a nexus between the ends and the means. If the nexus is not present, the court can strike down the legislation. Marshall suggests deference to the courts in the case of legal interpretive judgment, but neglects to say how probing the court should be in exercising its judgment.
g. Drafters’ Intent – If the original drafters had meant to restrain the power of congress through a strict necessity test reading of the necessary and proper clause, they would have made this plain in the text and consequent debates and federalist papers, because it would have deflected criticism from the anti-federalists.
4. Takeaways of McCulloch v. Maryland:
a. Marshall adopts a Hamiltonian perspective on the scope of federal legislative power, rejecting a strict necessity test in favor of something more flexible, while still requiring the statute be in furtherance of an enumerated power.
i. “Necessary” means useful and desirable, not indispensible or essential.
b. Marshall asserts for the judiciary the power to pass ultimate judgment on whether a statute is a genuine effort to act in furtherance of an enumerated power of if it instead is a pretextual attempt to achieve some other purpose. (But neglects to say how probing this inquiry will be.)
G. The Demise of the Bank
1. Andrew Jackson, Veto Message, July 10, 1832 (Deparmentalism – each branch of the national government can engage in some measure of independent constitutional interpretation)
2. He begins by shooting down the practical precedent argument in favor of the bank and says that practical precedent is actually against the bank, although he sort of makes some stuff up to prove his point. He says the record cuts both ways, so this argument is basically a wash. He also argues that practical precedent is a dangerous source of authority.
a. Jackson factors in the states’ opinions on the bank, which is something Marshall would never do.
b. He does not completely rule out practical precedent, but he demands clarity of opinion to give it weight.
3. Jackson argues that he is not bound by judicial precedent because, “Each public officer who takes an oath to support the constitution swears that he will support it as he understands it, and not as it is understood by others.” Each branch can make its own independent judgments as to constitutionality. This is a pretty extreme statement. Jackson’s motivation is to centralize power in the executive branch (but not in the federal government, so he is kind of the opposite of Marshall.)
4. Structural: “The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”
a. Jackson says the legislature has the power to determine whether a particular measure is “necessary and proper” to enable the bank to discharge its duties to the government, and from that decision there is no appeal to the courts.
b. Congress has the power to regulate the currency, and this power should not be transferred to a corporation.
